Regina (Roberts) v Commissioner of Police of the Metropolis and another (Liberty intervening)

[2015] UKSC 79; [2015] WLR (D) 536

Section 60 of the Criminal Justice and Public Order Act 1994, which in specified circumstances permitted a police officer to stop and search any person for offensive weapons whether or not he had any grounds for suspecting that the person was carrying such a weapon, was compatible with the right to privacy under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

The Supreme Court so held in dismissing an appeal by the claimant, Ann Juliette Roberts, against the decision of the Court of Appeal (Maurice Kay, Rafferty and Macur LJJ) [2014] 1 WLR 3299 to uphold the dismissal by the Divisional Court of the Queen’s Bench Division (Moses LJ and Eady J) [2012] HRLR 746 of her claim for judicial review against the Commissioner of Police of the Metropolis following an incident in Haringey when she had been stopped and searched on 9 September 2010.

A police superintendent had on that date granted an authorisation under section 60 of the Criminal Justice and Public Order Act 1994 in respect of certain parts of Haringey authorising, for a 17-hour period, a uniformed police officer to stop and search anyone or anything carried by him for offensive weapons or dangerous instruments. A police officer, called because the claimant had been travelling on a bus without paying her fare and had given a ticket inspector a false name and address, had asked to search her bag pursuant to the authorisation. She had resisted and been detained in handcuffs for the period of the search. The remedy sought was, inter alia, a declaration that section 60 of the 1994 Act was incompatible with the right to respect for her private life under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

BARONESS HALE OF RICHMOND DPSC and LORD REED JSC, with whom the other members of the court agreed, said that it was now common ground that the power of “suspicionless” stop and search which section 60 of the 1994 Act contained was an interference with the right to respect for private life, protected by article 8 of the Convention, although perhaps not at the gravest end of such interferences. It was also common ground that the power pursued one of the legitimate aims which was capable of justifying such interferences under article 8.2, namely the prevention of disorder or crime. The argument was about whether it was “in accordance with the law” as was also required by article 8.2. In one sense, of course it was, because it was contained in an Act of the United Kingdom Parliament. But the Convention concept of legality entailed more than mere compliance with the domestic law. It required that the law be compatible with the rule of law. That meant that it had to be sufficiently accessible and foreseeable for the individual to regulate his conduct accordingly. More importantly in the present case, there had to be sufficient safeguards against the risk that it would be used in an arbitrary or discriminatory manner. Any random “suspicionless” power of stop and search carried with it the risk that it would be used in an arbitrary or discriminatory manner in individual cases. There were, however, great benefits to the public in such a power. It was the randomness and therefore the unpredictability of the search which had the deterrent effect and also increased the chance that weapons would be detected. The purpose of that was to reduce the risk of serious violence where knives and other offensive weapons were used, especially that associated with gangs and large crowds. It had to be borne in mind that many of those gangs were largely composed of young people from black and minority ethnic groups. While there was a concern that members of those groups should not be disproportionately targeted, it was members of those groups who would benefit most from the reduction in violence, serious injury and death which might result from the use of such powers. Put bluntly, it was mostly young black lives which would be saved if there were less gang violence in London and some other cities.

Whatever the scope of the power in question, it had to be operated in a lawful manner. It was not enough simply to look at the content of the power. It had to be read in conjunction with section 6(1) of the Human Rights Act 1998, which made it unlawful for a police officer to act in a manner which was incompatible with the Convention rights of any individual, and with the Equality Act 2010, which made it unlawful for a police officer to discriminate on racial grounds in the exercise of his powers. It might be thought that those two additional legal restraints were sufficient safeguard in themselves. The result of breaching either would be legal liability and probably disciplinary sanctions as well. It was said that, without the need to have reasonable grounds for suspecting the person stopped to be carrying a weapon, it was hard to judge the proportionality of the stop. However, that was to leave out of account all the other features, contained in a mixture of the Act itself, the Police and Criminal Evidence Act 1984 and the police force Standard Operating Procedures, which guarded against the risk that the officer would not, in fact, have good reasons for the decision. The result of breaching those would in many cases be to render the stop and search itself unlawful and to expose the officers concerned to disciplinary action. First, as to the authorisation itself: (i) the officer had reasonably to believe that the grounds for making an authorisation existed; (ii) those grounds were much more tightly framed than the grounds in R (Gillan) v Comr of Police of the Metropolis [2006] 2 AC 307; (iii) the officer’s belief clearly had to be based on evidence; (iv) he had to record in writing, not only what his grounds were, but the evidence on which his belief was based; (v) he had expressly to consider whether the action was necessary and proportionate to the danger contemplated; (vi) that was why, in reality, he had to believe that an authorisation was necessary rather than merely expedient; (vii) the authorisation could only be for a very limited period of time; (viii) it could only be renewed once for a limited period of time; (ix) it could only cover a limited geographical area; (x) it was subject to review. Second, as to the operation itself: (i) there should be prior briefing if possible and certainly de-briefing afterwards; (ii) there should be prior community engagement if possible and certainly afterwards; (iii) where the authorisation was given by an officer below the rank of superintendent, it was subject to review by a superintendent; (iv) after the authorisation was over, the operation should be evaluated, in terms of whether its objectives had been met, numbers of searches, number of arrests, number of weapons seized, disproportionality etc, and community confidence and reassurance. Third, as to the actual encounter on the street: (i) the officer had to be in uniform and to identify himself by name and police station to the person stopped; (ii) the officer had to explain the power under which he was acting, the object of the search and why he was doing it; (iii) the officer had to record that in writing; (iv) the person searched was entitled to a copy of the form; (v) the purpose was limited to searching for offensive weapons or dangerous implements. All of those requirements, in particular to give reasons both for the authorisation and for the stop, should make it possible to judge whether the action was “necessary in a democratic society … for the prevention of disorder or crime”: article 8.2. No system of safeguards in the world could guarantee that no one would ever act unlawfully or contrary to orders. If they did so act, the individual would have a remedy. The law itself was not to blame for individual shortcomings which it did its best to prevent. It was not incompatible with the Convention rights. It would not, therefore, be right to make a declaration of incompatibility in the present case.